IR (Sri Lanka) & Ors v Secretary of State for the Home Department

Article 8 procedural fairness in national-security deportation or exclusion cases does not require disclosure of the essence of the case in the manner required by Articles 5(4) and 6. Its more limited requirements are effective safeguards against arbitrariness, including independent scrutiny and some adversarial process, while permitting necessary restrictions on classified information.

The statutory SIAC procedure, including judicial scrutiny of closed material and representation by independent special advocates, satisfies those Article 8 requirements. A later disclosure of intelligence does not, without more, establish an earlier legal error in SIAC’s disclosure process.

Four non-EEA nationals appealed against decisions of the Special Immigration Appeals Commission (SIAC) dismissing challenges to cancellation of leave, exclusion, deportation and refusal of further leave on national-security grounds. IR’s SIAC appeal was dismissed under reference SC/70/2008. GT’s was dismissed under reference SC/68/2008. AN and AK failed before SIAC on the national-security issue, although their appeals succeeded under Article 3 because they could not safely be returned to Pakistan.

SIAC, presided over by Mitting J, held that the appellants were entitled only to the procedural protections provided by the statutory SIAC scheme. The central issue was whether Article 8 imposed a disclosure standard equivalent to the irreducible minimum required under Articles 5(4) and 6.

1. Appeals dismissed. The Court granted AN and AK permission to appeal but dismissed all four appeals. The appellants had not shown an error of law by SIAC.
2. Where removal or exclusion on national-security grounds interferes with private or family life, Article 8 imposes procedural obligations. Those obligations do not equate to the disclosure requirements arising under Articles 5(4) and 6. The disclosure rule identified in [2009] UKHL 28, concerning knowledge of the essence of the case in control-order proceedings, could not be converted into a universal Convention principle.
3. The applicable Article 8 standard remained the Al-Nashif line of Strasbourg authority. It requires protection against arbitrary interference, including independent scrutiny by a body able to review the reasons and relevant evidence, and some adversarial process. It also recognises that national security may require procedural restrictions on the use of classified information.
4. SIAC’s statutory procedure met that standard. Closed proceedings were subject to judicial scrutiny, and the use of independent special advocates reduced the unfairness inherent in non-disclosure. The procedure was not perfect, but it provided the independent scrutiny and qualified adversarial process required by Article 8. The House of Lords’ approval of the SIAC procedure in [2009] UKHL 10 supported that conclusion.
5. The individual appeals disclosed no separate error of law. Later disclosure in United States proceedings did not show that the material could or should have been disclosed or gisted at the earlier SIAC hearing. SIAC had considered public-interest non-disclosure, and the special advocates did not support the complaint. The witness complaint also failed because the unanswered matters did not underlie the adverse findings and concerned protection of ongoing investigations.

• Court of Appeal (Civil Division): By [2011] EWCA Civ 704, dismissed the four appeals after granting AN and AK permission to appeal.
• Special Immigration Appeals Commission: Mitting J held that the statutory SIAC procedure supplied the applicable procedural protection. SIAC dismissed IR’s appeal on 30 October 2009 (SC/70/2008) and GT’s appeal on 21 December 2009 (SC/68/2008). It rejected AN’s and AK’s national-security challenges, while allowing their Article 3 appeals because return to Pakistan was unsafe.